Public Bill Committee

[Mr Gary Streeter in the Chair]

Clause 2  - Exceptions

Question proposed, That the clause stand part of the Bill.

David Gauke: I do not intend to say much in my opening remarks, but I am keen to respond to any questions that might arise as the debate progresses.
Clause 2 lists the exceptions when an employer cannot qualify for an employment allowance for a tax year, and the liabilities to pay secondary class 1 contributions that are excluded for the purpose of the allowance. A number of groups are excluded, including public sector employers, such as Departments, local authorities and NHS bodies, unless that employer is a charity. That is in line with the Budget announcement that the purpose of the employment allowance is to help businesses and charities with the cost of employing people, rather than helping to boost funding across the public sector.
The second excluded category is domestic employers, which we discussed at some length in the evidence sessions. By domestic employers, we mean persons who employ personal or domestic staff at home, such as nannies, cooks and gardeners. Also excluded are personal service companies that are caught under IR35 rules; managed service companies on deemed payments of earnings to the worker; and persons carrying on a business as a result of the transfer of an existing business in the tax year in which the transfer takes place. A person will be excluded when they would qualify for employment allowance as a result of avoidance arrangements, including attempts to bring forward or delay an employee’s earnings. The term “avoidance arrangements” is given a wide meaning and includes any arrangements where the main purpose, or one of the main purposes, is to secure the benefit of, or an increased benefit from, the employment allowance.

Anne-Marie Morris: We talked about this in the evidence sessions and I understand the reasons for the excluded groups, but I am concerned that a good lawyer looking at the Bill’s provisions might wonder how the terms will be properly interpreted. Public authority is defined in the Bill as
“any person whose activities involve, wholly or mainly, the performance of functions (whether or not in the United Kingdom) which are of a public nature.”
Will the Minister clarify whether there is any case law that would make the interpretation of that easy and beyond dispute?
Likewise, personal services are defined in the Bill as
“an employed earner who is employed (wholly or partly) for purposes connected with P’s personal, family or household affairs.”
Is that the subject of any case law? I am concerned about that. For example, someone might run their business from home and work at home, and they might employ an accountant to come into their home. Can the Minister give some clarity so that I do not need to be concerned about how the definition will be interpreted in practice?

David Gauke: I am grateful for my hon. Friend’s intervention. She brings her experience and background as a lawyer, if I remember correctly, to the Committee. That is obviously a good background for a legislator to have, and I suspect that that view might have cross-party agreement.
The Bill defines a public authority as
“any person whose activities involve, wholly or mainly, the performance of functions…which are of a public nature”,
as my hon. Friend has said. That broadly means that the organisation is providing a public service, rather than being a business providing a service to a public sector body. For example, functions of a public nature would include collecting household waste on behalf of a local authority, GP services, running a prison, collecting debt on behalf of a Department and providing meals on wheels on behalf of a local authority. The following examples, however, would not be regarded as functions of a public nature: providing security and cleaning services for a public building, such as Government or local authority offices, or supplying IT services for a Department or local authority.
My hon. Friend asked about personal service companies and gave the example of employing an accountant. First, one has to remember that the employment allowance relates to an employment relationship as opposed to a contractual relationship. One might use the phrase “employing an accountant” but in terms of contracting with an accountant to provide some support, the employment allowance would not be relevant. The measure applies only if employers’ national insurance contributions are going to be paid. The area of personal service companies has, over the years, attracted much interest in terms of legislation and there has been well developed treatment within the tax system of what constitutes a personal service company and what does not.
Personal and managed service companies, as my hon. Friend says, will be excluded from the entitlement to the employment allowance on secondary class 1 contributions due on deemed payments of earnings to the worker. There is a good reason for that. It would not be right to give them the benefit of a relief against aid contribution liability that arises as a result of anti-avoidance legislation—the so-called IR35 rules for personal service companies and the managed service company rules. However, where such companies pay the worker a regular wage or salary that attracts a liability for class 1 contributions, they will be able to claim the employment allowance on the secondary class 1 liability on those earnings. In that respect, the employment allowance is following the precedent of the regional secondary class 1 national insurance contributions holiday, which we discussed this morning. The question was whether there is a precedent, and there is a precedent in that particular.
I hope that those introductory remarks are helpful. I intended to let the debate progress and then pick up any questions that flow. I hope the clause will have the support of the Committee.

Shabana Mahmood: I am grateful to the Minister for his introduction to clause 2. I shall take each of the exceptions in turn very quickly.
We had a very helpful evidence session on public authorities and a line of questioning was followed by my hon. Friend the Member for Scunthorpe in his exchanges with Mr Manclark, who is in the Public Gallery today. For the sake of clarity, I would like the Minister to respond when he winds up the debate on the clause to my questions. The situation is that set of employees work for a local authority. Their function is contracted out to company A, which is then taken over by company B—the normal TUPE regulations apply to the treatment of the employees. As long as company A does 50% or more work that is private in nature, it will be able to claim the employment allowance when the employees carrying out that public function move from the local authority to company A. Will the Minister confirm that that understanding is correct?
Mr Manclark has said that the 50% test for deciding whether somebody is wholly or mainly carrying out either a public or a private function is helpful. He clarified to my hon. Friend the very point the Minister has just made by giving the Committee examples of functions that would be considered to be public and those that would be considered to be private. We might consider the running of a prison or a cleaning contract for a set of government or public buildings that may or may not include a prison. Of course, it is often the case that one or two very large companies have contracts that encompass parts that would be considered public in function and others that would be considered private. I am interested in what the Minister has to say about the boundary close to and just over 50%. Presumably Her Majesty’s Revenue and Customs has some experience of policing that boundary and of applying tests to determine whether a company carries out a function in whole, in part or in the main. Will the Minister give us further details on how those boundaries are policed and the way in which that test is applied, perhaps with some real examples of previous HMRC experience? That would be very helpful to the Committee.
Even when Government buildings are cleaned by private companies, public money is used to pay them. For the benefit of the Committee, it would be helpful if the Minister could set out the rationale for allowing that set of transactions to be subject to the employment allowance. In contrast, it is easier to understand the rationale for allowing other types of businesses engaging in normal business activity to flourish, create jobs and, I hope, increase wages and so on by using the employment allowance in that way.
Will the Minister talk the Committee through what assessment HMRC has made of potential pressure points in the legislation? I appreciate that he probably will not want to tell us in detail what those pressure points are —he does not want to alert tax planners. Immediately having discussed something, he might close it down, but I leave that to his discretion and judgment. The point was raised in oral evidence that the Bill will be looked at from the point of view of efficient tax planning. It would be helpful to know what HMRC has done to try and pre-empt that and how that process works in practice when we have new legislation of this nature.
The legislation will stop an employer from claiming the allowance and transferring the business to another employer—the second employer will not be allowed to claim the allowance for the same employees in the same tax year. That is sensible and clearly necessary in the legislation. Was consideration given to a slightly different scenario in which company A transfers to company B in April 2014, just as the employment allowance kicks in, but company A had not claimed any part of the employment allowance? My reading of the Bill is that company B would still not be able to claim any allowance for that tax year, and it would be helpful if the Minister could clarify whether that is correct. Did he consider whether a partially claimed allowance from company A might be allowed to transfer to company B, so that the full £2,000 benefit can realised for one set of employees in a given tax year? Will he set out the Government’s thinking on that scenario?

David Gauke: I am grateful for the questions that have been raised on employment allowance. To provide some context, we are talking about a £2,000 allowance. It is unlikely that that sum will drive a great deal of avoidance behaviour. We believe £2,000 will make a substantial difference for a lot of businesses, but it is unlikely to motivate very complex structures. I suspect the Committee fully appreciates that point. It is worth considering—this is why we cannot be complacent—whether there is a way in which one could structure such arrangements so that one got paid £2,000 repeatedly. That is what we are seeking to address.

Shabana Mahmood: Just to pick up on that point, I fully take on board that the allowance is not large enough to make wide scale avoidance behaviour likely. We discussed franchises in oral evidence and how each individual franchise could claim the allowance. Across a franchise it might be the norm to behave in a certain way in order for each of those individuals to get the £2,000 allowance.

David Gauke: Yes, I take that point, but there may be circumstances in which it is entirely justified—different franchises are run in different ways and that might be appropriate. Our concern in such circumstances is contrivance and artificiality. Given that there are costs in setting up a new company and time involved in debating contracts and so on, in the great scheme of things the measure is unlikely to be particularly high on the list of compliance risks that HMRC deals with. None the less, we should not be complacent. There are provisions in the Bill to prevent the artificial, contrived fragmentation of businesses in order to get the allowance several times over. That is why, in subsections (5) to (9), there are provisions to counter arrangements under which persons might seek to exploit the employment allowance by restructuring or fragmenting a business. In addition, the connected persons rules in clause 3 and part 1 of schedule 1 will ensure that, when companies control one another or are under the control of the same person or persons, they will receive just one employment allowance overall.

Ian Swales: We will discuss limited liability partnerships later. I do not suppose that we expected LLPs to be used as a way of avoiding national insurance for low-paid workers, but that is one of the abuses that have arisen. May I press the Minister further on that? Does he see any threat that people’s employment status will be changed, because £2,000 for each individual is a lot of money? Does he see any potential loopholes that will mean people’s employment status is changed in some way? For example, they could become entities in themselves.

David Gauke: If anything, the employment allowance might put in place a countervailing pressure on what exists currently within the tax system. If looks through the various employment statuses that may be available, generally one tends to see the argument that the least tax efficient is standard employment status, whereby employers’ national insurance is paid. Legislation is often designed, for example, to prevent false self-employment, which is seen as a more favourable structure because of the treatment of employers’ NICs and NICs as a whole. I do not see the measure as one that is likely to drive behaviour whereby people put themselves into one employment status when they previously had another.
The Bill contains measures to prevent artificial or contrived behaviour. There will be no particular drive to incorporate because employers who are sole traders or partnerships will be able to benefit from the employment allowance in the same way as companies, so the measure has no effect.
The Bill prevents a second employment allowance being enjoyed in the same year when arrangements are in place to transfer a business, such as when a sole trader decides to incorporate and become a company. If the concern is the transitional point and status changing over the course of a year, which could conceivably be a problem, it is addressed in the Bill.
On the point about public bodies—we debated in the evidence session the phrase “wholly or mainly” in relation to functions of a public nature—the Government believe that a 50% test is appropriate. As Mr Manclark pointed out in the evidence session, a 50% test is in some respects easier to police than a 100% versus 0% test. I hope that that is properly appreciated.
The hon. Member for Birmingham, Ladywood, asked about pressure points and successfully anticipated my answer—we do not want to go into detail. However, I can assure the Committee that the appropriate anti-avoidance safeguards are in place. We have looked at the matter carefully. Notwithstanding the points I made about the allowance being £2,000—I said that that, in itself, is unlikely to justify complex restructuring arrangements—we have put in place provisions to provide some legislative protection. Of course, HMRC will take steps as and when necessary if the employment allowance provokes any avoidance behaviour. As I have said, that is in the context of a relatively small sum of money.
The connected persons rule is applied at the start of the tax year to see whether two companies are connected to each other. That sets the employment allowance treatment for the rest of the tax year. However, when there is a transfer of business, for example with a merger or de-merger, the allowance is enjoyed up to the point of the transfer, but not for the rest of that tax year. I hope that provides useful clarification to the Committee. With those answers, I hope that clause 2 can stand part of the Bill.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3  - Connected persons

Question proposed, That the clause stand part of the Bill.

David Gauke: Clause 3 and schedule 1 set out the connected persons rules for the purpose of the employment allowance where companies are linked in a group or are otherwise under common control. We want those companies as a whole to receive one employment allowance. That means there is no incentive for larger businesses to fragment to receive more than one employment allowance. Given that the allowance extends to the charitable sector, it is only fair that the connected persons rule should also apply to charities, albeit one that is tailored to the different forms and structures taken by charities compared with companies.
Clause 3 provides that if at the start of the tax year two or more companies which are not charities are connected with each other, or two or more charities are connected with each other, only one of those companies or charities which would otherwise each qualify for the employment allowance can qualify for the employment allowance for that year. It would be up to the companies and charities concerned to decide which one will qualify for and claim the employment allowance.
Schedule 1 sets out in more detail the rules for determining whether persons are connected with each other for the purpose of clause 3. Given the different legal forms and operational structures of companies and charities, it has been necessary for the schedule to be divided into two parts. In each case, however, we have adapted the provisions in existing tax legislation so that companies and charities will be familiar with them. I should also stress that where two companies are connected with each other only through the attribution of rights between certain associated persons—for example relatives—the connected persons rule will bite only if the companies in question are commercially interdependent. For example, when one company gives financial support to another, they have the same economic or commercial objectives and have common management, employees and premises.
Charities will be connected with each other for the purpose of the employment allowance only if their purposes and activities are the same, or substantially similar and they are controlled by the same or connected persons. Part 1 deals with companies and is similar to the associated companies rules at sections 25 and 27 to 30 of the Corporation Tax Act 2010. No doubt, members of the Committee will have already noticed that. The definition of a company for the purpose of the employment allowance is based on the definition in that Act, but it has been extended to include limited liability partnerships, given that those are also bodies corporate.
Part 2 deals with charities and is similar to the connected charities provisions in section 5 of the Small Charitable Donations Act 2012. I hope that that is of help to the Committee, but I am happy to answer any subsequent questions.

Shabana Mahmood: The Minister answered my main question in his opening remarks, regarding the wording used in clause 3 and schedule 1 on connected persons, when he confirmed that the way in which the Bill seeks to decide whether two or more companies fall within the connected persons test is the usual way that businesses and charities are treated in tax legislation. Does anything in clause 3 or schedule 1 represent an innovation in how businesses and charities are treated for the purposes of deciding whether they are connected persons in the context of tax legislation?

David Gauke: I am delighted that I anticipated the hon. Lady’s question. The Bill leans heavily upon legislation elsewhere. To answer her question about whether anything constitutes a great innovation or change in terms of those definitions, the answer to that is no.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 4  - How does a person who qualifies for an employment allowance receive it?

Question proposed, That the clause stand part of the Bill.

David Gauke: The clause explains how a deduction or repayment of the employment allowance will be made. The main way for a qualifying employer to obtain the benefit of the employment allowance will be by means of a deduction from their secondary class 1 contributions during the tax year. For the Committee’s convenience, HMRC produced a draft of the administrative arrangements that will govern the making of such deductions.
To summarise, to keep the process as simple as possible for employers and thus maximise take-up, the employment allowance will be delivered through standard payroll software. Employers will need to self-declare their eligibility through their regular payroll processes. That confirmation will ensure that up to £2,000 in any one tax year will be deducted from their secondary class 1 contributions liability over the course of the year’s payments under pay-as-you-earn. For example, if in a tax year an employer has a liability of £3,000 in secondary class 1 contributions, the employment allowance of £2,000 will be deducted from that liability, leaving £1,000 of secondary class 1 contributions to pay.
The employer, as part of their payroll process, will offset the employment allowance against each monthly secondary class 1 contributions payment that they are due to make to HMRC until such point as the allowance is fully claimed or the tax year ends. Using the example I have already given, and assuming an even distribution of secondary liability over the year, the employer would enjoy the employment allowance against NICs payments due in April to November. In December, the employer would recommence paying £250 in secondary class 1 NICs. The following year, the employer would again start deducting a fresh allowance of £2,000.
For those employers who still submit their returns to HMRC on paper, there will be a paper process that will mirror the IT procedures. We want employers to benefit from the employment allowance in real time, rather than wait for the end of the tax year to claim the repayment. Nevertheless, there are provisions to enable an employer who has not been able to do deduct the employment allowance, which he is entitled to during the tax year—perhaps because he has forgotten to claim or he was not aware of the availability of the allowance—to make an application to HMRC for a repayment after the end of the tax year. Applications for a repayment can be made up to four years after the tax year in which the employment allowance was due. For example, a repayment claim for the 2014-15 tax year, which ends on 5 April 2015, can be made up to 5 April 2019.
I hope that that is helpful and I know that this has been an area of considerable interest to the Committee, both at the evidence stage and before. However, I hope that the Committee will note that this is a simple process; the important thing is for employers to make sure that they click the necessary box which is part of their payroll system. Software providers will be working on exactly how that will be presented to them, but I hope that that provides some reassurance to the Committee on how this will be implemented.

Shabana Mahmood: I thank the Minister again for his introduction to the clause. I absolutely accept his point that from an administrative perspective, this is a simple system to enable employers to claim the allowance. I have couple of points around the software. The software obviously needs to support the simplicity of the process. The Minister will be aware that real time information has had a few issues in relation to the accessing of employers’ records. In particular, there have been some stories in the press recently about difficulties with RTI, so will he update the Committee on how that is going and whether it poses any particular issues for the employment allowance?
We have had a lot of discussion in this Committee around effective communication of the allowance, and I am pleased that there is a procedure in the legislation to allow it to be claimed when somebody did not realise that they were entitled to it. I hope that that information will be easily and readily available on the relevant Government website, and that signposting to employers who may have forgotten or did not realise that they could claim will be as clear as it can be.

David Gauke: I am grateful for the comments and questions of the hon. Member for Birmingham, Ladywood. She is right to highlight real time information, but it is worth pointing out that delivering this particular policy would have been much more difficult for both employers and HMRC without RTI being in place. It is worth bearing that in mind when it comes to the question of why the employment allowance was not introduced earlier. It would have been extremely difficult to have done this without RTI being in place.
The hon. Lady asked how the introduction of RTI is going. Given the ambition that was involved when introducing RTI, which was the biggest change in the PAYE system since it was introduced in 1944, we are pleased with the progress that has been made. By the time that the employment allowance is introduced in April 2014, almost all employers will have been mandated into RTI. The roll-out of RTI continues to go well; over 90% of schemes are now reporting PAYE in real time for over 99% of individual PAYE records. HMRC is working closely with employers and their representatives while they are making the transition. Using the RTI platform for delivering the employment allowance will ensure that it will be simple to claim for employers. It will be a tick in the box once the employer payment summary, or EPS, is on their software. Those employers who do not have that facility on their software can use the free HMRC basic PAYE tools package.
For those eligible employers—around 2,000—who still submit their returns to HMRC on paper, there will be a paper process that will mirror the IT process, as I mentioned earlier. I hope that provides reassurance that we have got the PAYE infrastructure in place to implement the measure smoothly.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5  - Power to amend the employment allowance provisions

Question proposed, That the clause stand part of the Bill.

David Gauke: Clause 5 contains the regulation-making powers to increase or decrease the employment allowance for a tax year, and to amend the cases in which an employer cannot qualify for the allowance, and the list of secondary class 1 contributions liabilities that are excluded liabilities.
The clause also contains a power to make other incidental, supplementary, consequential or transitional provisions as might be necessary from time to time. All regulations made by virtue of the powers in the clause will be subject to the affirmative procedure and will thus be subject to approval by both Houses of Parliament.
I am happy to take the Committee through the clause subsection by subsection. However, I anticipate that the Committee would rather that I sat down and then answered questions.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6  - Decisions and appeals about entitlements to make deductions etc

Question proposed, That the clause stand part of the Bill.

David Gauke: Very briefly, the clause provides for a right of appeal. The standard appeal procedures for national insurance contributions apply to HMRC decisions about entitlement to, and the amount of, deductions or repayments of the employment allowance under clause 4.
Again, I am happy to take the Committee through the clause in detail, but I suspect I would do better just to respond to questions.

Gary Streeter: The Minister is catching the mood of the Committee.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clause 7  - Retention of records etc

Question proposed, That the clause stand part of the Bill.

David Gauke: Very briefly again, the clause covers the record-keeping requirements for employers who are claiming the employment allowance. The employer will need to keep documents or records relating to whether he or she was entitled to the employment allowance, and the calculation of any amount that has been or could have been deducted or repaid, for not less than three years after the end of the relevant tax year. The powers available to HMRC to check tax and NICs compliance under schedule 36 of the Finance Act 2008 will extend to enable HMRC officers to check compliance with the employment allowance legislation.
That is not an exceptional requirement and I hope it will stand part of the Bill.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8  - Commencement of the employment allowance provisions etc

Question proposed, That the clause stand part of the Bill.

David Gauke: As the Government announced in the Budget earlier this year, the employment allowance will be introduced in April 2014. In keeping with that announcement, the clause provides that the employment allowance provisions in clauses 1 to 7 and schedule 1 will come into force on 6 April 2014.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9  - GAAR to apply to national insurance contributions

Question proposed, That the clause stand part of the Bill.

Gary Streeter: We are keeping the Minister busy.

David Gauke: Thank you, Mr Streeter. I would like to think that we could maintain the same pace, but I suspect we might not at this point.
Earlier this year the Government introduced the general anti-abuse rule, a major new development in UK tax law, and a key part of the Government’s drive to tackle tax avoidance. The Bill would complete the job by extending the GAAR to national insurance contributions.
The Government have made it clear that we will take a robust line in tackling tax avoidance. It is simply not acceptable that a small but persistent minority tries to find ways around our tax laws to avoid paying their fair share, especially when the public finances are under considerable pressure.

Julian Smith: When the Minister was looking at GAAR, did he come to any conclusion why a GAAR or a similar policy had not been introduced by the previous Government? We went so far and so long without having a GAAR under Labour.

David Gauke: My hon. Friend raises an interesting point. Perhaps I am not the proper person to answer. I hope that we may get an answer during the course of the afternoon.
I will talk a little bit about how we got to where we got to. I also make a wider point. Given the quite significant increases we are seeing in yield from HMRC, given the action taken by the Government to close many loopholes during the past three and a half years, and given the reinvestment into HMRC to address avoidance and evasion behaviour, I think we have a proud record as a Government. Indeed, I would go further and say that I do not believe that any UK Government have done as much as we have to address avoidance and evasion.
The GAAR is but one part of it. I do not suggest it is the solution to every problem in the tax system, but it is a useful contribution. It is a key part of our strategy to prevent avoidance from occurring at the outset and tackle it firmly where it persists. This is the culmination of a long and considered process, starting with the Aaronson review in 2011, the HMRC consultation in 2012, the 2013 Finance Act and now this Bill.
The Aaronson report advised against the introduction of a broad spectrum general anti-avoidance rule. The risk of a broadly based GAAR was that taxpayers and their advisers would have to look at what the GAAR might do in a large number of circumstances where the possible application of such a GAAR could arise. This would place a significant burden on business and would risk damaging investment, all of which we want to avoid. To answer my hon. Friend the Member for Skipton and Ripon, when the previous Government looked at this matter not long after they were elected to office, they looked at a general anti-avoidance rule, which was broader, and concluded that the difficulties of such a GAAR were pretty well insurmountable.
Graham Aaronson and his Committee put forward proposals for a general anti-abuse rule which targets only those avoidance schemes that are clearly abusive. By “abusive” we mean the sort of scheme that one can see from the outset is simply a highly contrived arrangement designed to get round the tax law and avoid paying tax. Where something is on the borderline, the GAAR may prompt some to question what is and is not abusive. But that is no bad thing as the uncertainty will be limited to activities that are tax avoidance and will not impact legitimate business.
We consulted widely on this measure following the Aaronson report, and I have been struck by the widespread consensus that this is the right way forward. The public was rightly shocked in summer 2012 by some of the news items about highly contrived schemes used to avoid paying tax, a number of which tried to avoid NICs as well as tax. At a time when we need to make sure that everyone is paying their fair share to help to reduce the deficit, abusing the tax system in this way at the expense of the majority has to stop. Representatives of business, individual taxpayers and the professions have all shown common cause in wanting to get rid of this problem, and I am very grateful to everybody who committed a lot of time and expertise to help us to get this right.
The GAAR is only one plank in our overall strategy to tackle avoidance. HMRC published “Levelling the tax playing field” alongside Budget 2013 to provide an update on the strategy and set out the full range of measures being taken to tackle tax avoidance. We have heard arguments that because the GAAR is tightly focused it will give a green light to all other forms of tax avoidance. Those who think that should take note of the range of actions we have taken in recent Budgets and Finance Bills. We have, for example, taken firm action to clamp down on stamp duty land tax avoidance, introduced the new annual tax on enveloped dwellings, and continued to close loopholes as quickly as possible after they emerge.
In the summer, we published a consultation called “Raising the stakes on tax avoidance” in which we sought views on proposals for a new set of obligations for promoters of high-risk tax avoidance schemes. HMRC does an excellent job defeating tax avoidance schemes in the courts and ensuring that people know that many of these schemes simply do not work, but we know that there is more to do. That was why the consultation also encouraged users of avoidance schemes to settle their tax affairs after similar cases had lost in court or tribunal. The GAAR is an important step to increase the pressure on the tax avoidance industry, but it is not the only step and we will continue to take action against all forms of tax avoidance. Clause 9 will apply the tax GAAR introduced in part 5 of the Finance Act 2013 to national insurance contributions, and I hope that it has the support of the whole Committee.

Shabana Mahmood: The Minister and I will no doubt disagree on many occasions about the GAAR. Today is one such occasion, although its application to the Bill, such as it is, is uncontroversial. The problem that we have with the general anti-abuse rule as it stands is that it is so narrowly defined that the number of occasions on which it will be used will be few and far between. A question therefore arises of the extent to which it will prevent the kind of abuse that has caused the public such outrage in recent months. The rule requires the agreement of a panel of experts, all of whom are drawn from the tax avoidance industry, before it can be used by HMRC, and that consent is not unlikely in most cases.

David Gauke: May I urge a little caution from the hon. Lady? I know where her points about the tax avoidance industry arise from, but I think she should be a little cautious about suggesting that every tax advisor, whether lawyer or accountant—I declare a family interest in that my wife writes on tax law matters—is a member of that industry. I do not think that she would want to give that impression in this Committee or outside it.

Shabana Mahmood: No, and I am grateful for the opportunity to clarify the position, but I believe that that impression is given to the public. The Minister knows that I am referring to the incident of a former member of the independent advisory panel on the GAAR who had to resign after he was caught at a tax planning conference advising people how to
“keep money out of the chancellor’s grubby mitts”.
That does not create a huge amount of confidence among the public about how the independent advisory panel and the GAAR might operate. I accept that the gentleman in question has resigned, but I hope that the Minister recognises that the policy must not only be effectively implemented, but send the right signals, and as signals go, that was a pretty bad one.

Julian Smith: I think that the hon. Lady had a very successful career at an accounting firm before she entered the House. Does she regret that the Labour Government did not do more to deal with tax avoidance? She has seen this from both sides—as a Member, and from an accountant’s point of view—so could more have been done?

Shabana Mahmood: The hon. Gentleman says that I had a career in the accounting industry, but I did not— I was a barrister specialising in professional indemnity litigation. I hope he did not get his information from my Wikipedia entry, which also has me down as two years younger than I am.

Julian Smith: I admit that I did look at the hon. Lady’s Wikipedia entry yesterday, perhaps because her former boss, the shadow Business Secretary, has such a track record with Wikipedia—[ Interruption. ]

Gary Streeter: Order. Meanwhile, back to the Bill.

Shabana Mahmood: I think that is quite enough discussion about Wikipedia, but I am grateful to the hon. Gentleman for giving me the opportunity to set the record straight.
I am sure the Minister did not mean to forget about the disclosure of tax avoidance schemes in his response to the hon. Member for Skipton and Ripon. I am sure his amnesia was only temporary and that he will remember that, in 2004, the Labour Government introduced that process to require disclosure. As a result of the information obtained from that, 90-odd changes to tax law were made. The Government are building on that process, which has led to a recovery of revenue in the range of £16 billion and has had a profound impact on tax avoidance in this country. It has certainly recovered a great deal more than the Government’s estimate of how much the GAAR will yield, which is only £85 million a year by 2017-18. In the context of the £16 billion raised by the disclosure of tax avoidance schemes, that is a very small amount. The thrust of the GAAR ought to be to close the tax gap, but given that that is in the £35 billion range, the GAAR’s contribution to that will be very small. One of our problems with the GAAR is that its scale is so small that it will not do enough to close the tax gap.
As the Minister knows, there are no penalties for using a scheme to which the rule might be applied, so there is little or no disincentive for anyone who seeks to avoid tax. The GAAR is in danger of becoming a mere fig leaf to which the Government can point to say they are doing something about tax abuse and avoidance. However, in reality, it will not change the picture profoundly. It will certainly not go as far as the disclosure process that we introduced in 2004, which made a much greater contribution to closing the tax gap.
As the Minister considers the GAAR, which I am sure, like everything else, he keeps under constant review, I hope he will take on board the points that have been made about its effectiveness. A Government scheme for closing down tax avoidance should do more to close the tax gap than he estimates his policy will.

David Gauke: We have moved into an area of great contention and I will try to deal with the hon. Lady’s points.
I return to the intervention of my hon. Friend the Member for Skipton and Ripon, who asked why a GAAR was not introduced by the previous Government. I am tempted to respond to the question of why the new GAAR is not raising more money by pointing out that it is raising a darn sight more than the old GAAR, because there was not an old GAAR. The GAAR is a new innovation in our tax system, and the previous Government did not introduce one.
To be fair—Committee members know that I always try to be fair to the Opposition—Labour did look at this proposal, but it concluded that a general anti-avoidance rule would to be too difficult, both administratively for HMRC, and for businesses, because it would create too much uncertainty. It was thought that the only way to address that uncertainty would be through some kind of clearance regime so that businesses and individuals would be able to take proposed arrangements to HMRC, which would determine whether they fell within the general anti-avoidance rule. The conclusion was that the proposal simply would not be workable, which was why the previous Government did not go forward with it.
There will always be a tension between creating uncertainty and administrative burdens on the one hand and, on the other hand, trying to deal with avoidance behaviour. However, the Aaronson review’s group of tax experts from the legal profession and academia, who had commercial experience, came up with a solution to try to deal with the worst of avoidance behaviour, while not creating wider uncertainties or greater problems for business or HMRC. That is why we are where we are with the general anti-abuse rule that tries—quite successfully—to square the circle.
What has been devised is quite ingenious, and it works because of the advisory panel. I want to caution the hon. Member for Birmingham, Ladywood about her remarks about the panel, which provides clarification and guidance, and effectively prevents the need for burdensome clearance procedures. If we are to have an advisory panel that assesses whether behaviour is egregious, abusive, or outside the normal scope of tax planning, it clearly makes sense that it has a broad spread of expertise covering tax and commercial knowledge. That is exactly what the advisory panel provides, so we should be cautious about criticising the fact that there are people who know about tax on a tax advisory panel, which is perfectly sensible.
I have set out the reasons why the GAAR is what it is and why the measure is targeted at the abusive end of things. I think that that is a pragmatic response, so I urge the Opposition to support the GAAR, which I think is a great step forward.
I take the hon. Lady’s point about penalties under the GAAR. This is a complex area, because if there are penalties under the general anti-abuse rule, should there not be penalties under targeted anti-avoidance rules and so on? I do not think there can be a glib answer, and any changes are likely to be quite fundamental to how our tax system works. It is important that the GAAR can be bedded in and that there is a period in which taxpayers and advisors can get to grips with it. We have not ruled out future action to strengthen the deterrent impact of the rule by attaching penalties, if necessary. We will keep that matter under review. I do not want to digress greatly today, but there are complexities in terms of what that reform would involve and its collateral impact on our tax system.
I fully acknowledge that the previous Government introduced disclosure of tax avoidance schemes. The hon. Lady rightly said that this Government have built on and extended that, and increased penalties and so on. None the less—I will not be drawn too far into this wider debate, Mr Streeter—if one looks across the piece, I can comfortably and confidently state that no previous Government have done as much as we have done on tax avoidance, and we will continue to do so. The GAAR plays a useful part in what we are doing, although that is not all of it.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10 ordered to stand part of the Bill.

Clause 11  - Oil and gas workers on the continental shelf: secondary contributors etc

Question proposed, That the clause stand part of the Bill.

David Gauke: The clause introduces a power for the Treasury to make regulations to ensure that national insurance contributions are paid where persons are working on the UK continental shelf and their employer is outside the UK. It allows the Treasury to make regulations for a certification scheme whereby someone other than the specified employer for NICs purposes accounts for all the NICs obligations in full.
The clause is part of a wider policy to prevent offshore employers from being used to avoid employment taxes when the workers are engaged in the UK. The wider policy and the clause will take effect from April 2014. The clause relates specifically to the oil and gas industry. It introduces a power for regulations to be made ensuring that national insurance contributions are paid in full when persons are working on the UK continental shelf and their employer is located outside the UK. It also introduces a system of certification whereby someone other than the person specified in legislation meets the national insurance obligations.
For oil and gas workers on the UK continental shelf, such avoidance is best targeted through tailored legislation, taking account of the many legitimate reasons why the employers are based outside the UK. Furthermore, the oil and gas industry has a uniquely complex structure for contracts that is not present in other sectors. This tailored legislative approach is in line with other legislation relating to the oil and gas industry in which there are specific oil and gas tax provisions.
We published the draft regulations associated with the clause for technical consultation on 19 November. At its simplest, the regulations will mean that if a UK continental shelf worker is employed by a company outside the UK, the employer’s UK associated company will be treated as the employer for national insurance purposes. The regulations will also mean that when there is no such UK associated company, the oilfield licensees will be treated as the employer for national insurance purposes. In such cases, a certificate can be applied for and issued to confirm that the offshore employer is making the correct national insurance payments.
For the certificate to remain valid, the non-UK employer will need to make all relevant national insurance payments, including those associated with statutory payments such as sick pay. The oilfield licensees will not be liable for any underpayments of national insurance by the non-UK employer while there is a valid certificate. In the case that the non-UK employer does not make all relevant payments, HMRC will withdraw the certificate and the oilfield licensees will be responsible for all future national insurance payments from the date they are notified that the certificate is withdrawn.
Representatives from the oil and gas industry have been consulted about the design of this measure. They have been broadly supportive that national insurance should be paid for workers on the UK continental shelf. The clause has support from the industry and allays many of the concerns that they presented during the consultation. In fact, the certification scheme introduced through the clause was requested by the industry. This change will allow the industry to gain assurances that when national insurance is due, it is being paid for those people engaged on their oilfields.

Ian Swales: It is a pleasure to serve under your chairmanship, Mr Streeter. I support clause 11. I have a number of constituents who work offshore and there are many other such people around the country. As the Minister said, this is a uniquely complex area. The Library note on this is almost six closely-typed pages complete with diagrams—it takes quite a bit of getting through.
I make a plea on two issues to do with communication. First, there should be clear communication with employees themselves about their national insurance status. I know from constituency case work of offshore workers who, when they come to claim their pension, find to their shock that they were not in the national insurance scheme in the way that they expected. That is to do with the fact that a typical employee does not really get updated on their national insurance status unless they make special requests. As I said in the oral evidence sessions, I would ask HMRC to consider ensuring that employees are kept aware. Doing so will help to provide a check that the new system is working.
Another communication point is that the local payroll companies of which I am aware that deal with offshore workers do not always get clear help from HMRC. Even now, there are some internal inconsistencies on the HMRC website. Will the Minister pay special attention to training HMRC staff in the new arrangements to ensure that those who are involved in the administration of offshore workers get clear guidance and help when they need it?
Finally, the impact assessment shows that the value of the measure is £80 million to £90 million, which is a great deal of money. That prompts the question of whether there are any other avoidance techniques that might raise their head, given that such a sum appears to be at stake.

David Gauke: I am grateful to my hon. Friend for his questions. He raises an important point about clear communication with employees regarding their status and history of national insurance contributions, and I refer him back to what I said in the evidence session. Communication is a wider issue, but he is right to raise it in this context because a good example of where problems can arise is when people think that national insurance contributions have been paid, but they have not. The best way to address that is by looking more widely at how to make the tax system more up to date and suitable for the 21st century, with a more digital tax system through which we can provide additional information to taxpayers, in an easily accessible and digestible format, so that they can understand the taxes they have paid, the contributions they have made and how that money is being spent. As we move towards individuals having personal online tax accounts—similar to the way in which millions of people have online bank accounts—that is the type of information that we can cover.
On help for payroll companies and for HMRC in understanding everything, I can tell my hon. Friend that, on 10 December, HMRC will be publishing guidance on how everything will operate to ensure that people are aware. I am sure that will be of great interest to payroll companies in his constituency.
My hon. Friend also made a good point about how avoidance behaviour will change. As we try to address one artificial or contrived behaviour, we always need to think about the behavioural impact of that and how people will seek other areas in our tax code to exploit. I assure him that we are focused on that issue and are constantly looking for ways to address it. Again, one should look at the good record of our Government on that front, because our willingness and determination to try to address these difficulties is very strong.
I will be grateful for the Committee’s support for clause 11.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12  - Alternative investment fund managers

Question proposed, That the clause stand part of the Bill.

David Gauke: Clause 12 provides a power to modify the application of the Social Security Contributions and Benefits Act 1992 and its Northern Ireland equivalent in relation to class 4 national insurance contributions of individual partners who are members of FCA-related partnerships that apply the alternative investment fund managers directive requirements.
Under existing partnership tax rules, tax is charged to profits as they are earned, rather than when they are received. An unfunded tax charge can therefore arise to profits that are allocated to an individual partner of an AIFM partnership and then deferred in line with the regulatory requirements of the alternative investment fund managers directive. That is because the partner cannot access the deferred profits in the year when they arise.
The Government are committed to addressing the tax issue by introducing a new statutory mechanism, subject to parliamentary approval. The mechanism is designed in such a way that it will not compromise the Government’s objective for the partnerships review, which is to achieve fairer taxation by stopping tax planning through the use of mixed membership partnerships that include both individual and corporate members.
The new power introduced under the clause will support the introduction of the mechanism and will be used to change the relevant national insurance contributions legislation by regulation, once the related Finance Bill 2014 becomes law. I therefore commend the clause to the Committee.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13  - Members of limited liability partnerships

Question proposed, That the clause stand part of the Bill.

David Gauke: The clause disapplies section 4(4) of the Limited Liability Partnerships Act 2000 for the purposes of both the Social Security Contributions and Benefits Act 1992 and its Northern Ireland equivalent. That will enable the reclassification of certain limited liability partnership members as employed earners for the purposes of national insurance contributions.
Existing secondary legislation will be amended to ensure that members of an LLP who satisfy certain conditions will be treated for the purposes of national insurance contributions as employees rather than as self-employed. The conditions will broadly be that the individual member of the LLP has little or no real economic interest or risk in the LLP and instead has an entitlement to a fixed salary.
Treating members of LLPs as self-employed was designed to replicate the position of traditional partnerships. The clause ensures that the tax rules are not used to create a tax advantage and creates a level playing field between those partnerships that have not sought to misuse the tax rules for LLPs and those that have. I commend the clause to the Committee.

Shabana Mahmood: The Minister’s introduction to the clause was helpful and answered some of the issues that arose from the final question I asked him when he gave evidence to the Committee. The impact of a complete disapplication of section 4(4) of the LLP Act was not originally clear. However, I note that the Minister returned to something originally raised in the consultation on conditionality for working out the actual status of a member of an LLP. He says that that will come through regulations, and we know that we must also wait for further legislation on partnerships, so could he set out to the Committee the sequence of those regulations and the legislation to come? How will that take the issue relating to LLPs further so that we reach a place of complete clarity about how members are to be treated and which definitions apply now that section 4(4) is disapplied? Are we looking at using the definitions from the 1992 Act permanently, or only until new regulations are introduced?

David Gauke: To help the hon. Lady, detailed proposals in the form of regulations will be published in draft in the autumn, when the new tax legislation will be introduced under the Finance Bill 2014. That will ensure that individuals have access to the full proposals on tax and national insurance contributions at the same time. It is also worth pointing out that I wrote to the Committee yesterday to confirm that point.
The legislation will take effect on 6 April 2014, so individuals who are affected will be treated as if they are employees from the beginning of the next tax year. That is consistent for both tax and national insurance contributions. I hope that that clarification is helpful to the hon. Lady and to the Committee.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14  - Office holders who receive “earnings” to be employed earners

Question proposed, That the clause stand part of the Bill.

David Gauke: Clause 14 will correct certain changes made by the 2003 tax law rewrite project, which introduced a new term—general earnings for tax—which led to consequential changes to national insurance contributions legislation. The clause will ensure that all office holders are included in the definition of employed earners for national insurance contributions purposes, provided that they receive earnings as defined by either the Social Security Contributions and Benefits Act 1992 or the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
Schedule 2 to the Bill will introduce consequential changes to the legislation resulting from the correction.
I hope that those clarifications and corrections will gain the support of the Committee and that the clause stands part of the Bill.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 15  - Armed Forces early departure payments retrospectively disregarded

Question proposed, That the clause stand part of the Bill.

David Gauke: The early departure payments scheme is operated by the Ministry of Defence and provides a framework for making payments to qualifying service personnel who leave the armed forces between the age of 40 and the pension age for MOD personnel specified in the armed forces pension scheme, provided that they have sufficient years of service in the forces.
The EDPs came into existence on 6 April 2005. At that time, there was no liability for national insurance contributions. It has been the intention of successive Governments since the introduction of EDPs not to subject them to class 1 national insurance contributions. However, because of an interaction with the changes to the taxation of pensions in 2006, and the MOD providing further information on the nature of EDPs, such payments have been liable for class 1 NICs since the start of the 2005-06 tax year.
Clause 16 will provide for payments made under the Armed Forces Early Departure Payments Scheme Order 2005 to be disregarded for NICs purposes for the tax years 2005-06 to 2012-13 inclusive.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16  - Repeal of certain redundant reliefs relating to Class 4 contributions

Question proposed, That the clause stand part of the Bill.

David Gauke: There is not a lot to say on this clause. I could, of course, say a lot, but I am not inclined to.
Clause 16 will repeal two redundant class 4 national insurance contributions reliefs. As I am on my feet, I am sure the Committee will be keen to know what they are.
The first is the repeal of paragraph 3(3) of schedule 2 to the Social Security Contributions and Benefits Act 1992 and its Northern Ireland equivalent. It is an obsolete provision that dates from the introduction of independent taxation of spouses from 1990-91. Changes were made for 1990-91 onwards, so that only the losses of the self-employed person, and not their spouse, could be deducted for the purposes of calculating profits on which class 4 NICs are payable.
Paragraph 3(3) of schedule 2 to the 1992 Acts provides that any losses incurred under the previous rules could be carried forward and used against the class 4 NICs liability. The relief was a transitional provision, which the Office of Tax Simplification, in its review of reliefs, identified as no longer necessary and should be repealed.
The second repeal is that of paragraph 9 of schedule 2 to the 1992 Acts. This is another obsolete relief that provides that where a husband or wife has elected to be assessed separately for income tax purposes or a husband and wife have jointly elected that the wife’s earned income should be taxed as though she was a single person, the election is to operate for class 4 NICs purposes only. The effect was that wives would be assessed on their own class 4 income and would pay an appropriate contribution. Where an application has not been made for separate assessment or an election for the separate taxation of a wife’s earnings, the husband will be liable to pay any class 4 contributions due in respect of his wife’s income. The aggregation of income, which treated the income of a woman living with her husband as his income for income tax purposes, was abolished with effect from the tax year 1990-91 onwards, so the relief is redundant and is to be repealed.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clauses17 to 20 ordered to stand part of the Bill.

Question proposed, That the Chair do report the Bill to the House.

David Gauke: May I take this opportunity, given that we have rapidly come to the end of scrutiny in Committee, to thank one or two people? I thank all hon. Members for their contributions over the day. I am used to making such a speech at the end of consideration in Committee of the Finance Bill, which tends to begin in April and proceed through May, with a break, and then into June. If we are unfortunate, it may well conclude in July, so to complete consideration in Committee in a single day is a novel experience, but not unwelcome.
Given that matters have not been contentious, I thank the hon. Member for Birmingham, Ladywood for her appropriate and well-judged scrutiny. I do not need to warn her that it is not always quite like this. The Finance Bill Committee, which she will no doubt experience next summer, is much more of a slog. I am none the less grateful for her questions and interventions.
I thank the Whips—my hon. Friend the Member for Hastings and Rye on the Government side—for keeping everything in order, and my hon. Friend the Member for Macclesfield, who stood in as Parliamentary Private Secretary.
I thank you, Mr Streeter, for your calm chairing of proceedings. I do not believe that this has been one of the more difficult Committees to chair. I also thank Sir Alan for chairing the evidence sessions on Tuesday and the witnesses who gave evidence. I thank the Hansard writers and the Clerks. I thank the police for controlling the hordes of members of the public wanting to view proceedings, and the officials for the support that they have provided me.
The Bill is useful and will help to put in place an environment that is friendly for smaller businesses and good for increasing employment and wages. It also includes important measures regarding tax avoidance. It has been a great pleasure to consider the Bill, and a particular pleasure to have considered it so quickly. I look forward to consideration on Report, when we might be able to progress at a similar rate of knots.

Shabana Mahmood: I am grateful to the Minister for his comments and echo almost all his remarks. I have to say that it is somewhat disconcerting to start my career in the shadow Treasury team agreeing with quite so much of what he has to say. I look forward to being thoroughly disabused of that position soon.
In my first outing against the Minister, we considered a piece of delegated legislation that involved a huge amount from my previous role as shadow spokesperson on universities and science. He said, “It’s not always like this,” but he is having to say that to me again. I look forward to taking a different approach when we consider the Finance Bill.
I thank you, Mr Streeter, for your chairmanship of the Committee, and your help in guiding me through the procedure. I also want to put on record my thanks to Sir Alan for his chairmanship of the evidence sessions. I echo the Minister’s thanks to Hansard, the Clerks, police, officials, the Whips on both sides of the Committee and all Members who contributed to scrutinising the Bill. See it as an early Christmas present from me to everyone that we have finished so early.
I hope that the Minister will reciprocate. I remind him that I am a Muslim and our equivalent to Christmas is Eid, which is celebrated twice a year, so I hope he will be doubly generous at some appropriate moment and keep things to good time.

Question put and agreed to.

Bill accordingly to be reported, without amendment.

Committee rose.
Written evidence reported to the House 
NIC 01 Chartered Institute of Taxation